Some fantastic news: in response to the waves of criticism toward the proposed notice and takedown regime that might have curbed online speech in Brazil – see my prior blog post – the Brazilian Ministry of Justice has announced a completely different system for online service provider liability and content removal.

According to the new system, online service providers are only liable for third-party content if they do not comply with a takedown order issued by a court of law. In addition, the proposed notice and takedown system is completely gone: instead of a simple request from the alleged victim, a court order will be mandatory to take down alleged harmful content, requiring a prima facie analysis of said content by a judge.

This does not mean, however, that online service providers cannot do anything unless ordered by a judge. In fact, online service providers can still remove any content on their own if it violates their terms of service or for any other legitimate reason. It is also worth noting that other Brazilian laws may require that Internet intermediaries take down specific illegal content as soon as they are made aware of its existence, as is the case of child pornography.

This is the text of the new article 20 of the bill:

An Internet service provider shall only be held responsible for damages resulting from content created by a third party if, after receiving a related court order, it does not take measures to render unavailable (within the scope of its services and within the timeframe specified) the content identified as infringing.

This new system acknowledges that removing true harmful content from the Internet is a legitimate goal and also recognizes that determining what is legal or illegal is a task best left for the courts, not to the whim of users or ISPs.

I am thrilled that all the criticism from civil society was heard and that quick measures were taken. This change in the text of the bill in such short time demonstrates that the public consultation regarding this bill is indeed very democratic and open to any helpful suggestions.

This bill also deals with some other equally important, different issues – data retention, net neutrality and judicial requests for user information, to name a few – and it is still open to discussion till May 23rd.

I would like to thank Eric Goldman and all readers of this blog for helping me bring awareness to this very important issue. Thanks to you, we may have a more balanced approach to Internet intermediary liability and online freedom of speech in Brazil.